PARTLY DISSENTING OPINION OF JUDGE S ROZAKIS, MALINVERNI AND NICOLAOU

We are in agreement with the majority that the applicant ' s detention spanning the whole of the investigation period from 18 October 2006 to 16 April 2007 was justified. We observe in this regard that although the domestic courts relied both on Article 102 § 1(2) and Article 102 § 1(4) of the Code of Criminal Procedure to justify the detention (see the excerpts in paragraphs 33 and 38 of the judgment, as well as what is stated in paragraphs 39 and 40) the majority has, quite rightly, upheld the detention solely on the ground, provided for in Article 102 § 1(2), that if the applicant were released prior to the completion of the investigation “she might suborn witnesses.” The judgment does not cite the Article 102 § 1(4) ground as additional justification for that period of detention. It is in fact completely silent in so far as that ground is concerned.

Yet, for the subsequent period of detention – the pre-trial detention which commenced when the bill of indictment was filed on 16 April 2007 – the domestic courts justified the applicant ' s detention entirely on the Article 102 § 1(4) ground, and the majority accepts that justification as valid. We are unable to share that view. It has not been suggested that Article 102 § 1(4) might be applicable for the latter period but not for the former, and there is certainly nothing to indicate any such dividing line. It is necessary to see what this provision contains and we propose, for a better understanding of its effect, to place it in the context of the overall structure of Article 102 § 1:

Article 102

(1) Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention

1) if there are circumstances indicating a danger of flight (the person is in hiding, his identity cannot be established, etc.);

2) if there is a risk that he or she might destroy, hide, alter or forge evidence or traces relevant for the criminal proceedings or might impede the investigation by influencing witnesses, co-principals or accessories after the fact;

3) if special circumstances support the concern that he will repeat the offence, or complete the attempted one, or perpetrate the offence he threatens to commit;

4) if the charges involved relate to murder, robbery, rape, terrorism, kidnapping, abuse of narcotic drugs, extortion, abuse of powers in economic business activities, abuse of office or authority, association to commit a criminal offence or any other criminal offence punishable by imprisonment for a term of twelve years or more and if this is necessary because of the particularly grave circumstances of the offence.

It is quite obvious that detention may be founded on any one of the four above-stated grounds of Article 102 § 1 alone; it is equally obvious that Article 102 § 1(4) refers only to the gravity of the offence and the severity of the penalty. It is not at all concerned with the danger of flight. That falls exclusively under Article 102 § 1(1). We think we should underline this, lest it be thought that reference to the gravity of the actual offence and the likely severity of the punishment might also, by way of shorthand, allude to the possibility of an accused absconding. In fact the domestic courts never hinted at that and there is no reason to think that if they had contemplated such possibility they would not have relied on Article 102 § 1(1) as well.

It is clear that throughout the pre-trial period the domestic courts relied exclusively on the gravity of the offences charged and the likely punishment, laying emphasis on the horrendous nature of the acts charged and on the fact that those acts had been motivated by national hatred directed against blameless civilians. This is illustrated by the following extracts, taken from the decision of the Supreme Court dated 11 May 2007 (see paragraph 48 of the judgment):

“The decision on their further detention must be based exclusively on an assessment of the elements which, judging from the facts alleged in the indictment, might lead to the conclusion that in this case ... the manner in which the offence was committed, or the fact that it was committed in particularly serious circumstances justify detention under Article 102 § 1(4) of the Code of Criminal Procedure ...

... The defendants have been charged with the gravest acts, involving illegal arrests, ill-treatment and killings of civilians who had not given any cause for such acts ...

... The aim of detention under [Article 102 § 1(4) of the Code of Criminal Procedure] is that persons whose acts cause special moral reproach should not be kept at large, as this could influence the public in such a way as to diminish trust in the criminal justice system.”

The aim of preserving public trust in the criminal justice system, to which the Supreme Court referred, may explain the dismissal of the applicant ' s request that her detention be replaced by house arrest. The Zagreb County Court said, in its decision of 12 February 2008, that such a measure was not available in respect of an Article 102 § 1(4) detention. It described the ambit of house arrest in the following terms:

“Rule 3 of the Rules on House Arrest ( Official Gazette no. 3 of 7 January 2008) provides that the freedoms and rights of a detainee under house arrest may be restricted to the extent needed for the fulfillment of the purpose for which house arrest has been ordered; to prevent the detainee from absconding; to prevent the repetition, completion or commission of a criminal offence he or she has been threatening to commit; and to prevent communication between the detainee and other persons, save for those he or she lives with or who provide him or her with the necessary means of subsistence.”

We also note, however, that the Constitutional Court, which was the final court before which the applicant brought her complaint about her detention, gave a different interpretation of the aim of Article 102 § 1(4), saying that it was intended to guard against publi c unrest. In its decision of 17 September 2008, by which it quashed the lower courts ' decisions, it explained that

“Owing to their particular gravity and the possible public reaction, certain criminal offences may cause public unrest which could justify detention.”

In respect of the applicant ' s detention (she was one of a number of accused) the Constitutional Court criticized the lower courts in no uncertain terms. It said that

“The fail ure of the courts to assess the appropriateness, necessity and proportionality of detaining the applicants further on the basis of Article 102 , paragraph 1, point 4 of the CCP, without a valid explanation according to the principle of proportionality , amounted, in the estimation of the Constitutional Court , to a violation of their constitutional right to personal liberty.”

Not only did it conclude that in the circumstances the right to personal liberty outweighed any public interest in extending the detention, but it also admitted frankly that the detention had already lasted too long:

“The Constitutional Court considers that in the present case (apart from the fact that the detention has undoubtedly already lasted too long) the public interest in extending the applicants ' detention during the criminal proceedings against them – in which their guilt for the alleged criminal offences has yet to be decided – does not carry more weight than the right of personal liberty guaranteed by the Constitution and the European Convention on Human Rights.”

The nature and the actual seriousness of the offences or the gravity of the charges brought, as well as the severity of the penalty that may imposed, are obviously relevant factors which may indicate, especially when the prosecution evidence is strong, that there is a risk of absconding or reoffending. In such a situation it is incumbent on the national judicial authorities to ascertain and evaluate the various elements and factors involved, to explain their conclusions and to give reasons for their decision to detain, or for their decision to grant bail on terms that exceed what may normally be expected. In doing so, they are expected to balance the recognized requirements of public interest that may justify detention against respect for individual liberty, which at that stage is reflected in the presumption of innocence. The constant case-law of the Court leaves no doubt that the seriousness of the offence, whatever form the offence may actually have taken, and the probable severity of sentence do not of themselves, without more, justify detention, at least after the initial period. Article 102 § 1 (4) does not, on the face of it, seem to require more. Accordingly, it cannot constitute a valid basis for detention. However, in interpreting that provision, both the Supreme Court and the Constitutional Court have attributed to it an aim or a purpose to which we must now briefly refer.

In just two case s, both cited in the judgment – we are not aware of others – the Court has accepted that the particular gravity of an offence may generate a public-order issue justifying pre-trial detention. The first was Letellier v. France , 26 June 1991, Series A no. 207, and this was followed by I.A. v. France , 23 September 1998, Reports of Judgments and Decisions 1998-V II. We quote from the former (§ 51), but the same was repeated in the latter (§ 104):

“The Court accepts that, by reason of their particular gravity and public reaction to them certain offences may give rise to a social disturbance capable of justifying pre-trial detention, at least for a time. In exceptional circumstances this factor may therefore be taken into account for the purposes of the Convention, in any event in so far as domestic law recognizes ... the notion of disturbance to public order caused by an offence.

However, this ground can be regarded as relevant and sufficient only provided that it is based on facts capable of showing that the accused ' s release would actually disturb public order. In addition detention will continue to be legitimate only if public order remains actually threatened; its continuation cannot be used to an ticipate a custodial sentence.”

It is unnecessary in the present case to express a considered view on the “preservation of public order” ground. Even if we were to accept, in the light of what was stated by the Constitutional Court, that Article 102 § 1 (4) recognized such a ground, the domestic courts did not refer to facts capable of supporting it. Indeed, the County Courts and the Supreme Court never mentioned it at all.

In I.A. v. France (cited above) the Court also dealt with detention on the basis of a need to protect an accused. That has not been an issue here and we shall say no more about it.

As to the view of the Supreme Court that detention under Article 102 § 1 (4) was justified as a measure aimed at preserving public trust in the criminal justice system, we would point out that the Court ' s case-law does not envisage such a measure and we do not think that it should be accommodated. The right to personal liberty – a core right guaranteed by Article 5 of the Convention – must be vigilantly shielded from all kinds of erosive inroads.

We are therefore of the opinion that it has not been shown that the applicant ' s pre-trial detention had a sound legal basis and, further, we do not consider that it was in any event supported by relevant and sufficient reasons. Finally, let us respectfully say that we fail to see how, even on the basis of the analysis relied on by the majority, one could arrive at the conclusion that the length of the detention had not exceeded what was reasonable when the Constitutional Court, which looked into the particular requirements of the case, had held that at the time of its decision the applicant had already been in detention for too long.